UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CIS_4096_2005 (04 May 2006)

CIS/4096/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the appeal tribunal (the tribunal) erred in law in its decision given on 7 November 2005 under registration No. U/03/209/2005/00456. I allow the claimant's appeal. I set aside the decision of the tribunal, and under section 14(8)(a)(i) of the Social Security Act 1998, I give the decision which I consider the tribunal should have given:

"The claimant's partner satisfied the provisions of regulations 12 and 13(d) of the Income Support (General) Regulations 1987 as at 28 January 2005, the date on which they became a couple, and the Secretary of State is to reassess the claimant's income support accordingly."

2. The claimant, a man born on 12 May 1986, had been in receipt of income support since August 2004. On 28 January 2005, his partner "K", born 12 December 1988, and thus aged 16, came to live with him, her mother having asked her to leave the family home. At the time, she was pregnant and in full-time non-advanced education. On 1 February 2005, the claimant submitted an A1 claim form for income support seeking to add his partner to his claim. On 10 February 2005 the decision maker decided that the claimant's rate of income support would remain unchanged at £44.05 per week. Her baby was subsequently born on 1 April 2005, and thereafter K presumably had an entitlement to income support. In the event she subsequently separated from the claimant.
3. There was no dispute that K was in receipt of "relevant education" within the meaning of regulation 12 of the Income Support (General) Regulations 1987 (the 1987 Regulations). Regulation 13 of the 1987 Regulations provides:

"13. – (1) Notwithstanding that a person is to be treated as receiving relevant education under regulation 12 (relevant education) he shall, if paragraph (2) applies to him and he satisfies the other conditions of entitlement to income support, be entitled to income support.

(2) This paragraph applies to a person aged 16 or over but under 19 (hereinafter referred to as an eligible person) who –

…..

(d) of necessity has to live away from his parents and any persons acting in the place of his parents because –

(i) he is estranged from his parents and that person; or ….."

It is only if it is accepted that K falls within regulation 13 and thus establishes an entitlement to income support in her own right that the claimant and K will be entitled to the couples' rate of income support.

4. It is also common ground that K's mother asked her to leave home because K's mother did not get on with the claimant. She did not approve of K's pregnancy and had said that it was up to the claimant and K to support themselves. She had asked K to leave home which K had done. It is also accepted that K and her mother spoke regularly and after K no longer lived at home they had got on well.
5. On 10 February 2005 the decision-maker decided that from the details provided, K was not considered to be estranged from her mother and it had not been shown that she had, as a necessity, to live away from her mother due to estrangement. The decision-maker noted:

"Her disabled mother states she cannot look after her, however, she has supported her daughter for 16 years and no reason has been given why this should not be continued at least until the baby is born. Then [K] could claim in her own right when the baby is born.

6. The claimant then sought representation and assistance from the Social Services and appealed on the grounds that K had of necessity to live away from her parent and was estranged from her and that the decision-maker had failed to assess the facts correctly and had thus come to an incorrect conclusion on the issue of estrangement within the terms of regulation 13. The decision was reconsidered but not revised, because the decision-maker was not satisfied that K was of necessity living apart from her parent because she was estranged from her. The decision-maker considered that K was not alienated in feeling or affection from her mother and was not of necessity living apart from her mother because she was estranged from her, but for other reasons.
7. The tribunal met, but adjourned because neither the claimant nor K was present, as had been expected. The tribunal, consisting as is usual, of a chairman sitting alone, was then held on 7 November 2005, the claimant and K being present and represented. The decision notice was treated by agreement as the full statement of reasons. The tribunal recorded:

"….I accept [K']s evidence. She told me that she left home because she could not get on with her mother, that her mother felt that she would be unable to cope with a child and that she should have an abortion. She told me that after she left the [claimant] she did not return to her mother because had she done so then her mother would tell her what to do with the baby, and that her mother was a control freak.

That led me to the conclusion that [K] was estranged from her mother but I saw no reason to suppose that alienation was mutual. [The mother's] reactions seems not at all unnatural.

Having considered the matter I have concluded that estrangement must be mutual, or at the least that [the mother] must feel alienated from her daughter. I am strengthened in that view by the observations to Mr Commissioner Henty in CIS/4498/2001 at paragraph 7. he writes, "there must in my judgment usually be something in the nature of mutual alienation". The relevant provision appears to be directed at the situation where, not to put too fine a point on it, the parent has rejected the child. That had not happened in this case, or at least the evidence does not establish that it did".

The tribunal chairman expressed his regret at having reached this decision. He duly granted leave to appeal on the grounds that the major issue is the interpretation of the word "estranged" in regulation 13(2) of the 1987 Regulations.

8. The appeal is supported by the Secretary of State's representative on the grounds that:

"I submit that a young person in the circumstances of this case is for example estranged from their parent(s) if they have no wish to live with them, or they have no wish for any prolonged physical or emotional contact with them or the parent(s) has similar feelings. There is no necessity for this feeling/desire to be mutual."

She asks me to set aside the tribunal's decision and remit the case to a new tribunal for further findings of fact, although in the event I have felt able to substitute my own decision. It is because of the perceived divergence over the years in the meaning of the word "estranged" that I am asked to give a full decision.

9. The interpretation of "estrangement" between parties arises mostly in consideration of claims for funeral payments or income support, or since 2001, in connection with housing benefit, and less usually in cases under regulation 13(d), such as the present appeal.
10. The first case which is usually quoted in connection with estrangement is R(SB)2/87, where a claimant in fulltime relevant education was living away, and estranged, from his parents and in the care of a local authority, who was refused supplementary benefit. Mr Commissioner Rice, when considering whether the claimant could be "estranged" from the local authority acting in loco parentis said:

"Nor is it a proper use of language to regard local authorities being capable of being the objective instrument of estrangement, with its connotation of emotional disharmony." [My italics].

He made no further comment on estrangement. The focus of that decision was on the meaning of "person" under what is now regulation 13 of the 1987 Regulations.

11. The next case, taken as being a leading case on the meaning of "estranged", CIS/5119/1997, was also a decision by Mr Commissioner Rice and involved a funeral payment case. Mr Rice simply accepted a submission from the Adjudication Officer, as he then was, that:

"the word "estranged" is not defined in the legislation and therefore should be given its ordinary every day meaning. According to the Oxford English Dictionary the word "estranged" means "to alienate in feeling or affection". I submit that the evidence before the tribunal suggested that the deceased's son was not alienated in feeling or affection for his mother". [My italics]

The case did not deal with mutual alienation of affection but, as will be seen from the last sentence of the quotation, referred to the son being alienated in feeling or affection from the mother. This is the decision on which the submission writer to the tribunal relied at paragraph 5.8 at page 62, justifying the decision maker's decision on the basis that K "is not alienated in feeling or affection from her mother".

12. In CIS/3233/1998 Mrs Deputy Commissioner Ramsay said "estrangement may be one-sided in that one party does not want a rift to exist but the other party is unwilling to mend matters". In CIS/4199/1999, Mr Deputy Commissioner Whybrow said "it is possible for a son to become alienated in feeling and affection while the mother retains affection for the son" – and there may be the reverse position, with a child retaining affection for a parent who resists reconciliation.
13. Mr Commissioner Henty stated in CIS/5321/1998, a case involving a claim for funeral payments:

"The appropriate OED definition of "estranged" accepted in CIS/5119/97 is "to alienate in feeling or affection". I might put a gloss on that such as "not to be on speaking terms". The evidence before the tribunal points, I think not at so much as an alienation of feeling or affection – the emphasis being on "alienation" a concept which involves some form of positive consideration – but a drifting apart which to my mind connotes something short of alienation. Of course a long period of "drifting apart" may lead to the inference that there had been an alienation, but such is not, in my view, the case here."

Even the situation of "not being on speaking terms" may not be necessarily be regarded as requiring mutuality.

14. In a further case decided by Mr Commissioner Henty, CIS/4498/2001 also involving a funeral payment claim, it was argued that since the deceased, the claimant's mother, had dementia, she was therefore unable to have any meaningful conversation with either the claimant or his sister and they were "estranged". The Commissioner commented:

"7. There are slight indications of what "estranged" means both in R(SB)2/87 and CIS/511/97 [It] is not for instance "virtual estrangement", nor is the fact that the relation might be living abroad for long periods relevant either. There must in my judgment, usually be something in the nature of mutual alienation, and I put the point thus in paragraph 8 of CIS/5321/1998 [see paragraph 13 above, my italics].

…..Had such a breakdown in relations occurred before the onset of the mother's incapacity, then estrangement there would have been. But the incapacity by itself is not estrangement."

This is the case on which the tribunal relied, but on the facts it is plain to see why in that situation, the Commissioner emphasised a requirement for some mutuality, and he also stated this to be the "usual" position.

15. The claimant's representative refers to Miss Commissioner Fellner's comment in CIS/2660/1998, also an appeal in respect of entitlement to a funeral payment, where she said:

"10. I further hold that although the legislative test is whether a person not in receipt of a qualifying benefit was estranged "from" the deceased, so that the matter is to be looked at from that person's point of view rather than from the deceased's, [my italics] the adjudication officer has some grounds for submitting that both sides should be looked at. A young person may properly be held to be estranged from his parents where they have thrown him out, even though he may very much wish they had not. Even if the tribunal did look at what the mother did for her sons I am not satisfied that this was an illegitimate consideration."

This case involved a family where it was submitted that, although they continued to live at home with their mother, various children of the deceased were in fact estranged from her.

16. In CIS/1886/1999, Mr Commissioner Levenson took what has been considered a somewhat broader view. He said:

"5…The point at issue was whether, for the purposes of regulation 7(3)(c) the claimant's brothers and sister were "estranged" from their mother at the date of her death. On page 7 of form SF200, the funeral payment claim form, there is a printed question:

"Was the person who has died estranged from any of the surviving parents, sons or daughter? By estranged we mean that the family relationship has broken down. Please tell us how the family relationship had broken down."

6. The claimant had ticked the box saying "no" but in reply to the question as to how the family relationship had broken down wrote "my brother and sister live in Yugoslavia". On the basis that the claimant had ticked the box stating "no" the adjudication officer refused the claim. However, on the face of it if by "estranged" is meant that the family relationship had been broken down, the claimant was wrong to tick the box stating "no". If a person is living in relative peace and security in the United Kingdom while her family is in a country many miles away in the middle of a civil and international war…..I do not see how it can be maintained that normal family life and "the family relationship" have not broken down. The tribunal took the view that although there was physical separation there was no estrangement, although it gave no further explanation to this conclusion. In my view the tribunal's approach was unexplained and its conclusion was reached in error of law. The adjudication officer has argued, relying on CIS/5119/1997 that, estranged means "to alienate in a feeling or affection". I do not doubt that that is one possible meaning of the word. However for example the word "estranged" is defined in the Shorter Oxford Dictionary to include the meaning "to remove from what is accustomed; to keep apart from acquaintance with" and Chambers 20^th Century Dictionary defines "estranged" to include the meaning of "to cut off, remove".

7. In the context of the regulations under consideration I see no justification for imposing an artificially restricted meaning and I have no doubt that the word "estranged" as used in regulation 7(3)(c) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987, on any reasonable application of the word, covers the facts in the present case".

17. In CIS/3400/2000, a case on similar facts to the present appeal, where a girl had left home, Mr Commissioner Turnbull said

"I would have said that the word "estranged" when used with reference to parent and child, connotes either some significant element of disharmony, or at the very least an absence of any of the affection which one would expect between them. It is not suggested that those conditions were present here, still less that any such feeling or absence of feeling were the cause of the Claimant leaving her mother's home".


He made no comment on the need for mutuality of any such feeling, but it was not necessary on the facts of the case.

18. There is also the Northern Ireland reported decision R 1/02 (SF), again involving a claim for a funeral payment where Mrs Commissioner Brown said:

"33. It does appear that there was severance of any unavoidable contact between the deceased and her parents for the six months prior to her death. There was also considerable anger and emotional disharmony. It does have to be said that there was not a diminution in concern nor in underlying affection. Mere disagreement is not enough to constitute estrangement, there must be something akin to treating as a stranger for a sufficient period of time……

34……. I have no doubt that it would have been the parents' wish to be reconciled with their daughter prior to her death…..However, there was no opportunity for that to happen…..and at the date of the deceased's death she remained estranged from her parents".

There is no suggestion here either of a requirement of mutuality in feeling for estrangement to exist.

19. Since 2001, appeals in housing benefit cases have also come within the jurisdiction of the Commissioners. The Secretary of State's representative has drawn to my attention the decisions of Mr Commissioner Rowland in CIS/1846/2004 and of Mr Commissioner Jacobs in CH/117/2005 relating to estrangement between couples. Mr Commissioner Jacobs considered that it is a mistake to assume that emotional disharmony must necessarily be a feature of estrangement, citing the example of a couple who might decide they had no future together and separate, but who would remain on good terms. He concluded that for the purposes of income support or housing benefit they would be considered to be estranged. He disagreed with Mr Commissioner Rowland's view in CIS/1846/2004, reported as R(IS) 5/2005, where, like Mr Commissioner Jacobs, he did not wish to define the term "estranged" but he did say that he agreed with the suggestion in R(SB) 2/87 that estrangement has a "connotation of emotional disharmony"
20. Both of those decisions deal with estrangement in the context of housing benefit and married or cohabiting couples, where the relationship is different from a parent and child, although it does involve occupation of the same home. Taking Mr Rowland's view as the more compelling, given that the decision was reported, it has been seen in paragraph 10 above that in R(SB) 2/87 the Commissioner wished to stress that a local authority could not be " an instrument of estrangement", and there was no express indication that estrangement requires mutuality of feeling. Disharmony can arise from one person's attitude to another, even though, as said by several Commissioners and Deputy Commissioners, the other party may not wish the situation to be as it is. Nor did Mr Commissioner Rowland suggest a necessity for a mutuality of feeling.
21. It is clear why, in the particular circumstances of the appeal before him in CIS/4498/2001, the Commissioner emphasised "there must usually be something in the nature of mutual alienation". In the decisions I have considered, the Commissioner involved has stressed the element of estrangement which was relevant to the particular circumstances of the case before him or her, although perhaps Mr Commissioner Henty went a little further in CIS/5321/1998 referred to in paragraph 13 above. Clearly, each Commissioner has approached the word "estranged" by giving it its ordinary meaning within the context before him or her, and some of the emphases appropriate for the individual case have been lifted to the status of general propositions. There appears to be little divergence of principle between them.
22. As Miss Commissioner Fellner said, the position is to be viewed from the point of view of the claimant. Just as a child who has been excluded from the family home may wish he had not been so excluded, equally there are circumstances where a child would not feel able to return to the family home. As the Commissioner pointed out, the legislative test is whether the claimant is estranged from [ the appropriate party according to the benefit involved]. The same wording is used in regulation 13, and paragraphs 4(b), 25 and 26 of Schedule 10 of the 1987 Regulations and in paragraph 4(b) of Schedule 5 to the Housing Benefit (General) Regulations 1987. In none of them does the legislation refer to the "estrangement of, (or between), the parties".
23. The previous tribunal reached its decision with regret on the basis that there was no evidence that K's mother was alienated in feeling from K, or not sufficient evidence to support a decision that she was; this is not relevant. The tribunal found, that on the basis of the evidence which K gave, she was to be treated as being estranged from her mother, notwithstanding the evidence that when they met they were able to maintain more friendly relations in those more limited and neutral circumstances. The tribunal did, in my view correctly, question K as to what had happened after her relationship with the claimant terminated. She gave reasons as to why she had not returned to her mother.
24. On that basis, namely that K was estranged from her mother, I accept that it is appropriate for me to substitute the decision which I consider the tribunal should have given. For the reasons stated, the claimant's appeal succeeds; my substituted decision is set out in paragraph 1.

(Signed) E A Jupp

Commissioner

(Date) 4 May 2006